JAYA J MUDALIAR, MUMBAI V. ACIT CEN CIR 31, MUMBAI

ITA 7560/MUM/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 88276 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-02-2015
• Appeal Filed By: Assessee
• Bench Allotted: J
• Next Hearing Date: 26-11-2014
• Assessment Year: 2000-2001
• Appeal Filed On: 21-12-2012
• Court: TRIBUNAL
• Department Lawyers: S D SRIVASTAVA
• Section: 153A

Judgement Text

IN THE INCO ME TAX APPELLATE TRIBUNAL J BENCH, MUMBAI BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER I TA NO.7560/M/2012 (AY 2000 - 2001 ) I TA NO.7561/M/2012 (AY 2001 - 2002 ) I TA NO.7562/M/2012 (AY 2002 - 2003 ) MRS. JAYA J MUDALIAR, 101 - B, SHIVDHAM, 62, LINK ROAD, MALAD (W), MUMBAI 400 064. / VS. ACIT, CENTRAL CIRCLE - 31, MUMBAI. ./ PAN : AFAPM5862P ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI RAJESH KOTHARI / RESPONDENT BY : SHRI S.D. SRIVASTAVA, CIT - DR / DATE OF HEARING : 06.02.2015 / DATE OF PRONOUNCEMENT : 13 .02.2015 / O R D E R PER BENCH : THERE ARE THREE APPEALS UNDER CONSIDERATION. THESE THREE APPEALS FILED BY THE ASSESSEE INVOLVING THE AYS 2000 - 01, 2001 - 02 AND 2002 - 03. SINCE, THE ISSUES RAISED BY THE ASSESSEE IN ALL THESE APPEALS ARE ONE AND THE SAME AND THEREFORE, FOR THE SAKE OF CO NVENIENCE, THEY ARE CLUBBED, HEARD COMBINEDLY AND DISPOSED OF IN THIS CONSOLIDATED ORDER. APPEAL WISE ADJUDICATION IS GIVEN IN THE FOLLOWING PARAGRAPHS OF THIS ORDER. 2. THE ADDITION OF RS. 5 LAKHS IN EACH OF THE ASSESSMENT YEAR IS AN ISSUE WHEN THE SAID INCOME WAS CLUBBED WITH THE INCOME OF THE HUSBAND OF THE ASSESSEE MR. JOSEPH MUDALIAR. IT IS THE SUBMISSION OF THE ASSESSEE THAT MR. JOSEPH MUDALIAR WAS A APPLICANT BEFORE THE INCOME TAX SETTLEMENT COMMISSION. MR. JOSEPH MUDALIAR IS SUCCEEDED THE ASSESSE E IN BECOMING THE PROPRIETOR OF M/S. JOSEPH ENTERPRISES FROM THE ASSESSMENT YEAR 2003 - 04 ONWARDS. THE SETTLEMENT COMMISSION ADMITTED AND FINALIZED THE APPLICATION. THUS, THE INCLUSION OF UNDISCLOSED INCOME OF THE PRESENT 2 ASSESSEE IN THE INCOME OF MR. JOS EPH MUDALIAR HAS BECOME FINAL. IN THE ORDER GIVING EFFECT TO THE JUDGMENT OF THE SETTLEMENT COMMISSION, ASSESSING OFFICER DID NOT INCLUDE THE UNDISCLOSED INCOME OF THE ASSESSEE WHILE FINALIZING THE ASSESSMENTS FOR ALL THE THREE ASSESSMENT YEARS UNDER CONS IDERATION. THUS, THE SAID AMOUNT OF RS. 5 LAKHS EACH IN THE AYS 2000 - 01, 2001 - 02 AND 2002 - 03 IS DOUBLE TAXED I.E., ONCE IN THE HANDS OF THE ASSESSEE AND THE SECOND TIME IN THE HANDS OF THE ASSESSEES HUSBAND VIDE THE JUDGMENT OF THE SETTLEMENT COMMISSION. CIT (A) CONFIRMED THE VIEWS OF THE ASSESSING OFFICER AND THE MATTER REACHED THE TRIBUNAL. VIDE THE ITA NOS. 493, 494 AND 495/M/2009, THE ITAT SET ASIDE THE ORDER OF THE ASSESSING OFFICER AND THE CIT (A) AND DIRECTED THE ASSESSING OFFICER TO FOLLOW THE OR DER OF THE SETTLEMENT COMMISSION IN THE CASE OF MR. JOSEPH MUDALIAR (PARA 7 OF THE ASSESSMENT ORDER IS RELEVANT). AFTER HEARING THE ASSESSEE, ASSESSING OFFICER DID NOT GIVE RELIEF TO THE ASSESSEE AND CONCLUDED BY STATING THAT FOR ALL THE THREE ASSESSMENT YEARS UNDER CONSIDERATION, THERE IS NO REFERENCE AS SUCH REGARDING THE UNDISCLOSED INCOME OF THE ASSESSEE. HOWEVER, HE MENTIONED THAT THE SETTLEMENT COMMISSION HAS ASSESSED THE INCOME FROM UNDISCLOSED SALES AT 10% OF THE UNRECORDED SALES FOR THE BLOCK PER IOD 2000 - 01 TO 2005 - 06. RELEVANT PORTION FROM PARA 8.2 OF THE ASSESSMENT ORDER IS EXTRACTED AS UNDER: 8.2..THE HONBLE SETTLEMENT COMMISSION HAS ASSESSED THE INCOME FROM UNRECORDED SALES AT 10% OF THE UNRECORDED SALES OF RS. 3 CRS AT RS. 30 LAKHS FOR THE BLOCK PERIOD I.E., 2000 - 01 TO 2005 - 06. THEREFORE, THE INCOME FROM UNRECORDED SALES WORKS OUT AT RS. 5,00,000/ - FOR EACH ASSESSMENT YEAR I.E., FROM 2000 - 01 TO 2005 - 06. IN VIEW OF THE ABOVE ORDER OF THE HONBLE SETTLEMENT COMMISSION, THE INCOME OF THE A SSESSEE SMT. JAYA J. MUDALIAR IS TAKEN AT RS. 5,00,000/ - FOR AY 2000 - 01 INSTEAD OF INCOME ESTIMATED BY THE ASSESSING OFFICER IN HIS ORDER U/S 153A DATED 31.12.2007. 3. ASSESSMENT WAS COMPLETED BY MAKING ADDITION OF RS. 5 LAKHS IN EACH OF THE ASSESSMENT YEARS UNDER CONSIDERATION. CIT (A) CONFIRMED THE SAME AND THUS, THE ADDITION OF RS. 5 LAKHS PER YEAR WAS TAXED AGAIN IN THE HANDS OF THE ASSESSEE. THUS, THE DIRECTION OF THE ITAT TO THE DECIDE THE ISSUE IN ACCORDANCE WITH THE ORDER OF THE SETTLEMENT COMM ISSION IN THE CASE OF MR. JOSEPH MUDALIAR WAS NOT STRICTLY IMPLEMENTED. 4. IN CONNECTION WITH THE ABOVE FACTS OF THE CASE, LD COUNSEL FOR THE ASSESSEE BROUGHT OUR ATTENTION TO THE ORDER OF THE SETTLEMENT COMMISSION PAGES 14 TO 45 AND DEMONSTRATED THAT AN A MOUNT OF RS. 30 LAKHS WAS OFFERED AS ADDITIONAL INCOME FROM 3 M/S. JOSEPH ENTERPRISES WHICH WORKS OUT TO RS. 5 LAKHS PER ASSESSMENT YEAR COMMENCING FROM AY 2000 - 01 TO 2005 - 06, THE BLOCK PERIOD. 5. ON THE OTHER HAND, LD DR RELIED ON THE ORDERS OF THE REVENU E AUTHORITIES. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE REVENUE AUTHORITIES AS WELL AS THE RELEVANT MATERIAL PLACED BEFORE US. IT IS AN UNDISPUTED FACT THAT THE ASSESSEE WAS THE PROPRIETOR OF M/S. JOSEPH ENTERPRISES TILL AY 2002 - 03 AND MR. JOSEPH MUDALIAR BECAME THE PROPRIETOR FROM THE AY 2003 - 04 ONWARDS. THUS, THE SUM OF RS. 15 LAKHS (RS. 5 LAKHS FOR EACH AY) WAS ADDED BY THE SETTLEMENT COMMISSION AS ALREADY TAXED IN THE HANDS OF MR. JOSEPH MUDALIAR I N P L A C E H I S W I F E . THEREFORE, REPEATING THE SAME A DDITION I.E., RS. 5 LAKHS IN EACH OF THE THREE ASSESSMENT YEARS, AMOUNTS TO DOUBLE ADDITION. IT IS A SETTLED PROPOSITION THAT THE SETTLEMENT COMMISSIONS ORDER IS FINAL AND CONCLUSIVE. THE HONBLE SUPREME COURT IN THE CASE OF JYOTENDRASINHJI VS. S.J. TRIPA THI & ORS (SUPREME COURT) (111 CTR 370) HELD THAT N O ADDITION CAN BE MADE IN RESPECT OF THE INCOME COVERED THEREIN IN THE HANDS OF ANY OTHER ASSESSEE . FURTHER, IT IS ALSO A SETTLED PROPOSITION OF THE LAW THAT THE INCOME CANNOT BE ASSESSED TWICE AND TAXE D IN THE HANDS OF TWO PERSONS AND THE JUDGMENT OF THE APEX COURT IN THE CASE OF LALJI HARIDAS VS. ITO & ANR. (SC) (43 ITR 387) IS RELEVANT IN THIS REGARD. CONSIDERING THE ABOVE SETTLED POSITION IN LAW AND THE FACTUAL MATRIX OF THE PRESENT CASE, WE ARE OF THE OPINION THAT THE GROUNDS RAISED BY THE ASSESSEE IN ALL THE THREE APPEALS ARE ALLOWED. 7. IN THE RESULT, THREE APPEALS FILED BY THE ASSESSEE ARE ALLOWED. ORDER PRONOU NC ED IN THE OPEN COURT ON 1 3 T H FEBRUARY, 2015. S D / - S D / - (VIJAY PAL RAO) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 1 3 .2.2015 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 4 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI